F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Tenth Circuit

TENTH CIRCUIT

November 14, 2005

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 04-4121

v.

D. Utah

MICHAEL ANTHONY
HAMBELTON, also known as
Michael Chanthachack, also known as
Anthony Chanthachack, also known
as Michael Hambleton, also known as
Anthony Hambleton,

(D.C. No. 2:03-CR-00670-001-DAK)

Defendant - Appellant.
ORDER AND JUDGMENT *
Before HENRY, HARTZ, and TYMKOVICH, Circuit Judges.
Michael Anthony Hambelton pleaded guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. 922(g)(1). On appeal he challenges his

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
*

sentence. He alleges that the district court erred in applying a four-level

enhancement after finding that the crime of conviction was committed in
connection with another felony, and in denying credit for acceptance of
responsibility. He also alleges a Sixth Amendment violation because his sentence
was enhanced based on facts found by the district court. We affirm.
Background
On July 19, 2003, a shooting occurred at a party in Sandy, Utah.
Information obtained by the police, including an eyewitness identification, led
them to suspect that Mr. Hambelton, a convicted felon out on parole, was the
shooter. On July 29, 2003, police and probation officers conducted a search of
Mr. Hambeltons home. A backpack containing three firearms was found next to
his bed. Ballistics tests showed that one of the guns had been used in the
shooting.
Mr. Hambelton was charged and pleaded guilty to a one-count indictment
alleging that [o]n or about July 19, 2003, . . .[Mr.] Hambelton, . . . having been
convicted of a crime punishable by imprisonment for more than one (1) year, did
knowingly possess in and affecting interstate commerce, firearms and
ammunition, to wit: three Smith & Wesson .45 caliber handguns and 6 rounds of
American .45 caliber ammunition; all in violation of 18 U.S.C. 922(g)(1). The
presentence report (PSR) suggested a base offense level of 20 and a criminal
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history category of III. It further suggested (1) a two-level increase because the
offense involved three or more firearms, (2) a two-level increase because the
firearms were stolen, and (3) a four-level increase because the firearms were used
in connection with another felony, specifically, the July 19, 2003, shooting
incident. The PSR also said that Mr. Hambelton should not be awarded a
reduction for acceptance of responsibility because he falsely denied being
involved in the shooting.
Mr. Hambelton filed an objection to the PSR denying that he was the
shooter. He also argued that the offense of conviction (felon in possession)
should not be deemed to be in connection with the shooting because it occurred
10 days before the guns were discovered and he was arrested. At the sentencing
hearing Detective Jeffery Duval testified that a witness to the shooting incident,
James Taala, had told him that the shooters name was Anthony, that the
shooter lived near 3500 West and 5400 South, that the shooter was a member of a
local gang, and that the shooters brother had recently been arrested. From this
information Detective Duval was able to identify Mr. Hambelton as a suspect. A
second witness, Greg Love, identified Mr. Hambelton as the shooter from a photo
lineup. Finally, ballistics tests matched one of Mr. Hambeltons guns to the
shooting. The district court rejected his objections, adopted the findings of the
PSR, and sentenced him to 97 months in prison.
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DISCUSSION
We review a district courts interpretation of the Sentencing Guidelines de
novo, and its factual findings for clear error. United States v. Walters, 269 F.3d
1207, 1214 (10th Cir. 2001). Mr. Hambelton first argues that the district court
erred in finding that his illegal possession of firearms was in connection with
another felony offense. United States Sentencing Guidelines (USSG)
2K2.1(b)(5). He contends that USSG 2K2.1(b)(5) should have a time limit, and
that the fact that he was not found with the guns until 10 days after the shooting
establishes that he did not possess the guns in connection with the shooting. This
argument ignores two undisputed facts. First, the indictment to which he pleaded
guilty specifically charged possession [o]n or about July 19, 2003, the date of
the shooting; and second, ballistics tests identified one of the guns found in his
home as the gun used in the shooting. In addition, an eyewitness picked
Mr. Hambelton out of a photo line-up, (although a second witness could not
identify him as the shooter). This evidence was more than sufficient for the
district court to find that the possession of the guns was in connection with the
shooting.
Mr. Hambeltons second argument is foreclosed by the same facts. He
argues that the district court erred in refusing to reduce his sentence for
acceptance of responsibility because he falsely denied relevant conducti.e., that
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he was the shooter. Although a defendant may be eligible for an acceptance-ofresponsibility reduction without admitting relevant conduct beyond the offense
of conviction, the court can refuse to grant the reduction when the defendant
falsely denies, or frivolously contests, relevant conduct that the court determines
to be true . . . ; USSG 3E1.1(a) cmt. n.1(a). Mr. Hambelton was identified as the
shooter by an eyewitness, the gun used in the shooting was found in his home, and
the indictment to which he pleaded guilty charged him with possession of the gun
on or about the date of the shooting. Yet he denied his involvement in the
shooting. Under these circumstances the district courts conclusion that he acted
in a manner inconsistent with acceptance of responsibility was not clearly
erroneous. See United States v. Suitor, 253 F.3d 1206, 1211 (10th Cir. 2001)
(acceptance of responsibility denied when defendant testified untruthfully about
relevant conduct).
Finally, Mr. Hambelton argues that we should remand for resentencing in
light of Blakely v. Washington, 542 U.S. 296 (2004), which was applied to the
Sentencing Guidelines in United States v. Booker, 125 S. Ct. 738 (2005). He
concedes that the issue was not raised below, so we review only for plain error.
Plain error occurs when there is (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public

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reputation of judicial proceedings. United States v. Gonzalez-Huerta, 403 F.3d

727, 732 (10th Cir. 2005) (internal quotation marks omitted).
Although Mr. Hambelton does not specifically identify any alleged error,
we presume that the alleged error was the mandatory application of the guidelines
and the courts finding (1) that the firearms were stolen and (2) that the firearms
were used in connection with the July 19, 2003, shooting. (The sentence was also
enhanced because the offense involved three or more firearms. But this fact was
charged in the indictment and was therefore admitted by Mr. Hambelton in
pleading guilty to the indictment.)
A district court commits constitutional Booker error when it applies the
Guidelines in a mandatory fashion, makes factual findings (other than the fact of
prior convictions), and imposes a sentence above the maximum that would apply
in the absence of such findings. United States v. Clark, 415 F.3d 1234, 1238
(10th Cir. 2005) (internal quotation marks and emphasis omitted). Constitutional
Booker error satisfies the first two prongs of the plain-error test. Id. at 1240. The
burden of satisfying the third prong is on the defendant. Id. He can meet this
burden by showing that the district court would impose a sentence outside the
applicable guidelines range if the case were remanded, or by showing a
reasonable probability that a jury, applying the beyond-a-reasonable-doubt
standard, would not have found the facts necessary to enhance the sentence. Id.
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If the defendant can satisfy the third prong, the fourth prong still requires him to
show that the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Gonzalez-Huerta, 403 F.3d at 732 (internal quotation
marks omitted). Although we conduct this review less exactingly in cases of
constitutional Booker error, see United States v. Dazey, 403 F.3d. 1147, 1174
(10th Cir. 2005), it is still a demanding standard Gonzalez-Huerta, 403 F.3d at
737.
Because the fourth prong imposes such a high burden, these cases are often
resolved at the fourth prong rather than the third. Id. at 736 (We need not
determine whether Mr. Gonzalez-Huerta can satisfy this burden because even if
he were to meet the third prong, he must also satisfy the fourth prong to obtain
relief.). [S]entencing error meets the fourth prong of plain-error review only in
those rare cases in which core notions of justice are offended. United States v.
Lawrence, 405 F.3d 888, 906 (10th Cir. 2005) (internal quotation marks omitted).
Mr. Hambelton has not even attempted to satisfy this burden. His briefing on this
issue consists of two short paragraphs that do no more than allege the error
without setting forth any facts or supporting argument. He does not argue that the
district court would impose a lower sentence on remand, and there is nothing in
the record to indicate that this might be the case. See id. at 907 (Whether the
district court would simply reimpose the same sentence on remand, or whether
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instead the sentence would likely change to a significant degree if [the case] were
returned to the district court for discretionary resentencing, is one factor to
consider in determining whether the defendant can satisfy the fourth plain-error
prong. (brackets in original, internal quotation marks omitted)). Additionally,
we note that although the PSR stated that the guns were stolen, Mr. Hambelton
did not object to the PSR on this basis, or place any argument or facts into the
record to contradict the PSR. Cf. Dazey, 403 F.3d at 1178 (concluding that the
fourth prong was met, in part, because the defendant vigorously contested the
judge-found facts that enhanced his sentence). The sole objection to the PSR
was that Mr. Hambelton was not the shooter at the July 19, 2003, incident. But,
as previously noted, there was compelling evidence that he was. Mr. Hambelton
has not demonstrated that the Booker error in any way seriously affects the
fairness, integrity, or public reputation of judicial proceedings. GonzalesHuerta, 403 F.3d at 732 (internal quotation marks omitted). We therefore deny
relief on this ground.
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge

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